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Bush-Era Commutable-Distance Gaming Rule Nixed

Gale Courey Toensing

7/19/11

`A controversial Bush-era guidance memorandum that invented a new rule for off-reservation Indian gaming has finally been shredded.

Department of the Interior (DOI) Assistant Secretary-Indian Affairs Larry Echo Hawk, the head of the Bureau of Indian Affairs (BIA), told tribal leaders at the National Congress of American Indians mid-year conference on June 14 that he has rescinded a January 3, 2008, memo which said, among other things, that tribes could develop casinos on land off their reservations only if it was within “commutable distance.” The memo didn’t define “commutable distance,” but former Assistant Secretary-Indian Affairs Carl Artman, who issued the guidance memo, indicated in testimony to Congress that 40 miles was the farthest a tribe could go from its reservation, a BIA news release reported. The day after it was issued Artman rejected almost two dozen land-into-trust applications.

The 2008 guidance memo had been issued without public notice or consultation with tribal leaders, which set off a flurry of protest from tribal leaders. Consultation became an important issue early in President Obama’s administration. At the first White House Tribal Nations Conference in December 2009, President Obama issued an executive memo directing departments and agencies to develop procedures to engage in “regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications.”

Echo Hawk said he had rescinded the 2008 memorandum after extensive tribal consultations. “The 2008 guidance memorandum was unnecessary and was issued without the benefit of tribal consultation,” Echo Hawk said in a BIA news release. “We will proceed to process off-reservation gaming applications in a transparent manner, consistent with existing law.”

“Many tribes recommended that the Department [of the Interior] rescind the guidance memorandum because it was not subject to tribal consultation and because it was, in their view, inconsistent with broader Federal Indian policy,” Echo Hawk wrote in a memorandum to BIA regional directors June 13. “Other tribes contended that the guidance memorandum was unreasonable because it makes inappropriate judgments regarding what is in the ‘best interests’ of tribes, assumes that a tribe will experience a reduced benefit if its gaming facility is located at a certain distance from its reservation, and equates ‘reduced benefit’ with a harm to the tribe.” Still others said the memo was unfairly prejudiced against tribes with reservations away from populations centers and ignored historical facts regarding where the federal government created reservations. And some tribal leaders supported the memo because it limited off-reservation gaming to areas close to existing Indian reservations, Echo Hawk wrote.

The consultations and review process followed a memorandum issued June 2010 by Interior Secretary Ken Salazar to Echo Hawk recommending that he undertake a thorough review of issues, guidance, and regulatory standards relating to off-reservation gaming, and in consultation with tribal leaders. Taking land-into-trust on behalf of Indian tribes is one of the DOI’s most important functions, Salazar wrote to Echo Hawk. “Tribes use lands taken into trust for a variety of vital purposes: housing, health care, education, agriculture, energy and economic development. The large majority of land-into-trust applications is for these self-determination purposes, and have no connection to Indian gaming,” he wrote. Of the more than 1,900 trust applications currently pending before the BIA, more than 95 percent are for non-gaming purposes, he said.

Schumer attempted to take credit for the change and made another stretch by claiming it helps his efforts to put a casino in the Catskills.

Salazar also directed Echo Hawk to move ahead on the backlog of pending land-into-trust applications. While Salazar did not explicitly instruct Echo Hawk to ignore the 2008 “commutable distance” requirement, he did so implicitly by directing the assistant secretary to follow the law and precedents in place. “Land-into-trust applications must fully satisfy the requirements set forth in applicable Federal law, including but not limited to the Indian Reorganization act, the land-into-trust applications regulations…and any applicable case precedent,” Salazar wrote, urging a “transparent and orderly” process. “Decisions must be made in a lawful and timely manner; indecision creates frustration and uncertainty.”

After Echo Hawk broke the news about the commutation of the “commutable distance” requirement, Sen. Charles E. Schumer (D-New York) posted a statement on his web site taking credit for the assistant secretary’s action. The headline read:

After schumer’s urging: department of interior to rescind blanket ban on off-reservation gaming—makes casinos in the catskills a possibility

Schumer said on his website that the previous Catskills casino applications should be reconsidered, specifically citing the St. Regis Mohawk Tribe, which sought to build a casino at the Monticello Raceway, and the Stockbridge-Munsee Band of Mohican Indians of Wisconsin, whose application to take 330 acres of land-into-trust in New York’s Sullivan County, to build a $700 million casino was denied by the Interior Department in February. Schumer had worked with former New York Gov. David Paterson on under-the-radar negotiations for the casino with the Stockbridge-Munsee, who have a 22,000-plus-acre reservation more than 1,000 miles and several states away from the Catskills location.

“Today’s announcement cracks open a previously locked door and presents a renewed opportunity to pursue a Catskills casino,” Schumer said. “Though barriers still remain, this groundbreaking action by DOI removes what was an insurmountable hurdle on the path to a Catskills casino. The Department of the Interior has seen the light and overturned this unfounded administrative standard, which will open the door for applications to build casinos in the Catskills, which have enjoyed broad support, and because they can create jobs and new economic opportunities for upstate New Yorkers in one of our state’s most economically challenged areas.”

While there was indeed support for a Catskills casino—the St. Regis Mohawk Tribe was in the final stages of approval for its

BIA head Larry Echo Hawk

Catskills casino project when the “commutable distance” memo blocked it—the Stockbridge-Munsee project was broadly opposed. The tribe’s proposal was greeted with almost universal opposition from Indian nations in New York state as well as racino owners and the general population, who voted 81 percent against the project in a statewide poll.

The Oneida Indian Nation was particularly offended by Stockbridge-Munsee’s proposal. The Nation, which offered its hospitality to the Stockbridge-Munsee and other Indians, such as the Brothertown Indian Nation in the 18th century, refuted Stockbridge-Munsee band’s claim of ties to the area.

“Unlike the Oneida Indian Nation, which has been here since time immemorial, the S­tockbridge-Munsee of Wisconsin has no historical claims to land in this state,” Mark Emery, the Oneida Nation’s director of communications, said at the time. “They have no more claim to land in New York than does a guest at a hotel.” The Oneida Nation issued the following statement after Echo Hawk’s announcement. “In today’s announcement on the rescission of its 2008 memorandum on off-reservation gaming, the Department of Interior made clear its continued reliance on its existing rules and regulations, long interpreted to restrict off-reservation gaming, particularly for out of state Indian nations,” Emery said in the statement. “This announcement poses a welcomed opportunity for states like New York and its governors to negotiate with in-state Indian nations for resolutions of their long-standing disputes.”

Echo Hawk’s news was also welcomed by Shinnecock Indian Nation former trustee Lance Gumbs, who said the dumping of Artman’s “commutable distance” memo would help his nation in its quest for a casino location. In New York, the Shinnecock Nation has a state-recognized reservation located on Long Island, whose traffic snafus are legendary even without a casino. “This directly affected our tribe especially in light of our local, state and federal officials not wanting us to do gaming on our tribal lands in the Hamptons,” Gumbs said. “It not only helps Shinnecock but it directly helps Chairman Cedric Cromwell and the Mashpee tribe as well in one of our hurdles to achieve gaming. Next up: a clean Carcieri fix and we will able to fulfill our dream of true economic development for our tribes.” A “clean Carcieri fix” would be legislation to repair a 2009 U.S. Supreme Court ruling that the Interior secretary does not have authority to take land-into-trust for tribes not “under federal jurisdiction” in 1934 when the Indian Reorganization Act was passed.

While tribes and their gambling company partners may be eager to pursue off-reservation casinos now that the distance restriction has been lifted, Indian gaming experts say regulatory hurdles remain in place. The “commutability” standard was important both as an indication of the Bush administration’s policy stance toward Indian gaming, and as a very real obstacle to “off-reservation” gaming, which is more accurately called “gaming on newly acquired lands, under the exceptions in the gaming law, said Kathryn Rand, Dean & Floyd B. Sperry Professor of Law at the University of North Dakota School of Law. “It clearly was indicative of the Bush administration’s opposition to off-reservation gaming, and responsive to politically charged accusations of ‘reservation shopping,’?” Rand said. But since the initial denials of almost two-dozen applications, Artman’s memo has sat on the shelf, but remained as a policy statement and a deterrent to off-reservation gaming. “In that context, Echo Hawk’s much-awaited decision to rescind the memo is an important indication of a significant change in the Obama administration’s approach to off-reservation gaming in particular, and Indian gaming generally. It’s not just a victory for tribes; it’s also a victory for common sense and sound policy.”

But it remains to be seen exactly how rescinding the memo will play out in practice, Rand said. “In fact, one of our biggest criticisms of the memo was that sufficient constraints already were in place under both the Indian Gaming Regulatory Act (IGRA) and the land-into-trust regulations. Rescinding the memo doesn’t automatically kick open the door for off-reservation gaming, it just unlocks it,” Rand said.

Echo Hawk’s action is a good thing “for Indian country because it means the department is willing to deal fairly.” said Judy Shapiro, a Washington, D.C.–area attorney who has practiced Indian law for almost three decades and specialized in Indian gaming issues. “What is encouraging about the assistant secretary’s action was not that he was going to grant any land-into-trust applications specifically, but that the prior memorandum was inappropriate,” Shapiro said. “It was improperly adopted and he said so. He said it was adopted without consultation, without notice, without the ability for comment and it was immediately implemented, again without consultation or notice or comment. So rather than pretend it has the force of law, the assistant secretary rescinded it.”

But getting land-into-trust for gaming is not going to suddenly become easy, Shapiro said. “The assistant secretary said he’s still going to do a case-by-case evaluation. It doesn’t mean there’s going to be a rush to do off-reservation gaming because it’s really, really hard to satisfy the existing regulations. After a year’s consultation and evaluation of that consultation he said there’s no need to modify the existing regulations.”

The regulations for off-reservation gaming are found in Section 20 of IGRA, which puts forward a general prohibition against Indian gaming on trust lands acquired after October 17, 1988, when IGRA was enacted. And then it provides a number of exceptions to the prohibition, including land within or contiguous to a tribe’s existing reservation; land for tribes without reservations; land within the tribe’s last recognized reservation; land claim settlements; initial reservations for newly acknowledged tribes; and restored lands for re-recognized tribes.

But the most difficult—and most controversial one—is called the Two-Part Determination, which allows gaming on land acquired after October 17, 1988 only if the Interior Secretary determines it is in the “best interest” of the tribe and not detrimental to the surrounding community and if the governor of the state concurs with that opinion. It is not clear how the secretary determines if an application for land-into-trust for gaming is in the best interest of the tribe and not detrimental to the community. And a governor can effectively veto a land-into-trust application for gaming simply by not responding to the secretary’s request for concurrence with his decision.

But even if a tribe is able to meet the difficult requirements of the Two-Part Determination, there are additional requirements before it can open a casino on newly acquired trust land. “It is worth noting once again that a positive gaming eligibility determination is only one of three necessary steps an applicant tribe must go through to open a Class III facility,” Echo Hawk wrote in his June 13 memo to the BIA’s regional directors. “In addition to a positive Two-Part Determination under the ‘off-reservation’ exception, the applicant tribe generally must have land acquired in trust on its behalf, and must enter into a valid tribal-state gaming compact.”

And for all of the controversy surrounding trust land for gaming, for the outcries against “reservation shopping” during the Bush administration and more recently, and the attempts by some legislators to amend the provision for off-reservation lands for gaming out of the law altogether, it’s also worth noting that only five tribes have gained approval for off-reservation gaming in the 23 years since IGRA’s enactment.

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